Eric Freedman: When I got the news reports about September 11th
and the events of that day, I was preparing to teach my constitutional law class, on McCulloch v. Maryland, no less. There was a great deal of chatter among my fellow law professors about how they could teach antitrust or environmental law or whatever their subject was in light of what had happened. But it was obvious to me at that moment that there would be no public policy debates more important in the days ahead than ones about the constitutional restraints on governmental power. I said that to my students and went ahead and taught my class. Everyone was there... they were physically there, anyway... a number of people were checking in to find relatives. My wife happened to be working at the World Financial Center, quite close to the World Trade Center. She managed to get out of downtown on a city bus that had been commandeered by the police to take people uptown.

The Talking Dog: Have you been to Guanantamo Bay, and if you
have, what are your impressions and what can you tell me about your clients?

Eric Freedman: I have not physically been there. My name does
occasionally appear on court papers, but my personal role is not to be
responsible for individual client interests. That way I can provide unbiased advice to the representation as a whole, and assist in coordinating strategies of all of the related litigations. For example, in 2004, I helped coordinate the positions of the individual lawyers in three separate cases, Hamdi, Rasul and Padilla, that went to the Supreme Court.

I continue to play that role today, helping the lawyers handling the representation of specific individuals to work with other litigators to maximize everyone's overall probability of success.

The Talking Dog: You've commented before on the use of the
term "enemy combatant" as a portmanteau, or made up phrase by combining
words (Alice in Wonderland or Orwell are the most ready examples). Other
examples might be "war on terror", or now, "unlawful combatant". I would argue that the government has been remarkably successful at getting the
general public NOT to care about the fate of those we capture (including
citizens like Padilla or legal residents like al-Marri). To what extent would you attribute this to (1) skillful Orwellianisms (ie making these "unpersons" through language and deceptions), (2) media complicity in not letting the public be informed about this other than on the Administration's terms and (3) an outright character deficiency in the American public (e.g. David Cole's suggestion of "no natural constituency"?

Eric Freedman: One must understand that all of the Administration's policies begin with the conclusion and the attempt to concoct post hoc legal rationalizations was an effort to give a veneer legality to actions that had already been determined upon without consideration of their legality. The initial policy determination was to apply unconstrained force against "terrorists". Since our society has no legal framework permitting the executive "liquidate enemies of the state" -- our government needs to abide by either a war paradigm, or a
criminal justice paradigm -- the Administration needed to rewrite the
necessary legal terms and principles to conform to the original policy decision.

That was why the first instinct was to call the situation "a war", even though it was, of course, NOT "a war" in any recognized sense. But then, even the term "war" proved to be not good enough, because then - under the legal ramework applicable to wars - there would be privileged belligerents; soldiers for the other side would be entitled to combat immunity. After all, such a soldier is just doing his duty, like our soldiers. Indeed, that recognition was one of the major advances of civilization.

Hence, the term "enemy combatant" was designed to obscure the difference between privileged and unprivileged belligerents, and make it a war crime simply to fight against the United States of America. Until the passage of the Military Commissions Act, the Administration took the position that everyone who is hostile to the interests of the United States is "aiding the enemy" and can be charged with that...notwithstanding, of course, that if they ARE the enemy they are supposed to be aiding it!

Language has been twisted into a pretzel in a reflection of the desperate effort needed to conceal the fact that this Administration wishes to be bound by no legal constraints, of any kind whatsoever, and so it is trying to invent a law free zone, where neither criminal law nor law of war limits on its activities exist. Of course, in our system, the American executive does not have unconstrained power... the legal result has ended up being a failed Rube Goldberg device.

The Talking Dog: Let me follow that thought up, a second...
President Ford famously issued an executive order barring assassinations. I'm not aware that has been rescinded. Does that in any way effect the non-existent "liquidate enemies of the state" issue?

Eric Freedman: Look at it this way. We have launched Predator
missiles in Yemen-- not a country in a war zone-- to kill passengers in a car. If this IS a war against "terrorists", and we can legally do that, then why aren't the terrorists equally legally at war with us? So would they then be acting perfectly within their rights to assassinate one of our generals in London-- or Washington?

The Talking Dog: Do you see an exit strategy from the government's detention policy? Will there come a point (it hasn't happened after 5 years) but at some point where the public wiill just say "hold it-- you've now held people for 6 years 8 years, 10 years 20 years WITHOUT CHARGING THEM (after releasing hundreds)... do something about this?

Eric Freedman: I don't doubt for a minute that the combined effects of pressure from multiple sources, including the courts, public opinion here and abroad, fueled by continued revelations in the press and by watchdog groups, will eventually force a change. The government has followed an appalling course of conduct in this matter, but this is hardly the first time in our history that it has done utterly pernicious things. Our system is strong enough to correct itself in time, and has a rich enough network of democratic institutions to bring that about. To the extent that the government has already retreated from some its more extreme positions, this has been less a result of efforts made in the legal system and more to do with what has appeared in the press. That is a testament to the system's strength. And I would add that it is no
coincidence - and a should be a most serious cause for bipartisan public alarm - that the press is under unprecedented government assault.

The Talking Dog: That said, I note that the fact that I am talking to you, and indeed, to many others involved in war on terror matters, while other members of the press (and especially broadcast media) are not, indicates that the press has, to put it politely, left an awful lot on the table on these issues. How would you comment on that?

Eric Freedman: One can certainly criticize the press, and indeed, every other institution including and especially Congress, but one of the strengths of our system is its redundancy. There are a whole variety of mechanisms in our system to enable it to self-correct its course. Of course any designed machine will potentially exceed the robustness of its fail-safe systems, which is why continued pressure from an aroused public is so critical.

The Talking Dog: You have written extensively about habeas
corpus (including your book Habeas Corpus, Rethinking the Great Writ of
Liberty.) Congress, of course, in the recent Military Commissions Act, purports to eliminate the right of those accused of terrorism by the government (including perhaps citizens and certainly legal residents) to challenge detentions in that regard by habeas corpus. The LOWER federal courts, of course, are courts of limited jurisdiction, and Congress can expand and contract that jurisdiction by legislation (which they appear to have done) subject to constitutional limits, if any. Now, of course, in the 1780s, there were no lower federal courts-- and only a Supreme Court is enumerated in the COnstitution. That said, let me ask a three part question... The first part...

A. Can't Congress taketh away what it giveth to lower federal courts, i.e., since federal court habeas corpus is statutory, can't it eliminate it by statute, notwithstanding the suspension clause?

Eric Freedman: Answering the first part of your question, in the
book on habeas corpus, I write about the Bollman case, and deal at length with unresolved question (or a wrongly resolved question!) about what the Founders meant with respect to the Constitution's Suspension clause, which was later addressed in St. Cyr.

The suspension clause simply has to mean that the United States Supreme
Court has habeas corpus power, regardless of Congressional action, or else Congress could simply do nothing (i.e. not pass a Habeas Corpus Act), and thereby suspend habeas corpus. In Bollman, Marshall adopted this second view. But his words are dicta in the case, and ignore the history that he himself acknowledged.

As I explain in my book, saying that the Court would not have habeas corpus power unless Congress granted it would be contrary to English history, and otherwise, would render the suspension clause meaningless. It would place the power in the hands of the very institution that the Suspension Clause was intended to constrain in the first place.

Today's the Supreme Court sees the issue and has done its best (successfully so far) try to avoid facing the question. Instead, it has chosen instead to misinterpret Marshall. I would rather see them repudiate his view, but I am certainly much happier to see them get Marshall wrong and the Constitution right rather than the other way around.

The Talking Dog: The second part of my question on this point, is this:

(B) Since in the 1780s, nothing presumably limited a STATE COURT from
granting a habeas, would it not be correct that a non-federal court, say, the Virginia Commonwealth courts or the D.C. Superior Court, could direct a federal official to produce a prisoner in his control on the grounds that the detention violates FEDERAL LAW and the Constitution? Arguably, Congress hasn't stopped this, correct? (Would immunity lie against enforcement OF A FEDERAL CONSTITUTIONAL RIGHT?)

Eric Freedman: Professor William Duker argues, and I agree, and
Prof. Bill Nelson agrees and indeed all historians agree-- that the state courts have an independent power to issue writs, and indeed, independent obligations to do so.

However, that line of argument has been rejected in Abelman v. Booth. The historians think the case wrongly decided-- but it is not at all likely that the Supreme Court will revisit this. This result was reached to strengthen federal supremacy over the states, tamping down on Confederate legal theories.

As Tarble's case confirms, there is no likelihood that the court will overturn the results of the Civil War judicially, so I would not expect this line of doctrine to change.

In short, the answer to your question is "Yes... but the Supreme Court has ruled otherwise."

The Talking Dog: Let me ask the last part of this group of
questions... (C) In the case of Guantanamo defendants, I understand that
every single one has at least one case pending in the District of Columbia federal court; can Congress change the rules like this after a case has commenced?

Eric Freedman: Aside from the suspension clause issues, this
attempt to retroactively deprive the detainees of their Rasul rights is most troubling. These people, of all people, are entitled to habeas corpus rights, having initiated their action pursuant to an existing statute. It is a most serious constitutional problem to deprive people of their rights in pending cases, no matter whether the underlying claim is for antitrust violations, civil rights violations or whatever.

However, the rules regarding the application of new law to pending actions are not as well developed as the rules regarding the application of new law to already-reached judgments. Instead there are strong presumptions against reading statutes to have retroactive effect, and the courts are always receptive to arguments that enable them to avoid concluding that Congress meant to wipe out pending cases. That happened
in Hamdan , and may well happen again. Certainly, the lawyers for the Guantanamo detainees are urging the courts to adopt that course with respect to the new Military Commissions Act. (see here and here.)

The Talking Dog: Do you see any political will, say, if Democrats retake both houses of Congress, to reverse this situation?

Eric Freedman: The right political strategy is to apply pressure through any means available in a democratic society, be it litigation, legislation, lobbying, public pressure, etc. It is more than possible that a combination of these sources may make the President- as he did with the McCain bill-- alter course. After all forty-eight senators voted against the habeas stripping provision of the Military Commissions Act... it lost 51-48. It is not absurd by any means to foresee the possibility of a switch, particularly given possible shifts caused by the coming election.

Thus far, Congressional intervention has been unproductive, and the President has been unsympathetic to any change in his policies. But no issue is ever settled in Washington, and in the current climate I think that pressing for positive legislative change on an issue that is after all at the core of American values is the right thing to be doing.

The Talking Dog: Do you see any likely "legal strategy" angle-- such as attacking extraordinary renditions, or citizen round-ups (like Padilla), or taking on habeas, as likely to be more successful given the current make up of our courts as opposed to others?

Eric Freedman: Yes. But I'm not going to publish it!

The Talking Dog: Do you have a long-term view on the viability of the Bill of Rights and Constitution? Do you see us all snapping back from this, or can the terror card keep things moving toward less freedoms indefinitely?

Eric Freedman: Judge Learned Hand said that the spirit of liberty lives in the hearts of the people. If it dies there, no court or judge can save it. The historical record is that after unduly long reflection and consideration, the American people ultimately return to their core values, because those values are right on multiple levels. The history of responses to overreactions, from the Palmer raids to Japanese internment and other examples, show us that eventually, the country snaps out of it, and
returns to its basic belief in fairness. I wrote an article in the ABA Criminal Justice Section's March 2002 Journal on this point, and I only wish I had been able to get it into print even sooner after Sept. 11 than that.

Will enough individuals see the importance of these issues to insist on having their voices heard? The trends are favorable. The public understanding of these issues has increased dramatically in the last five years. I would say, to swipe from Churchill that if we are not at the beginning of the end then at least we are at the end of the beginning.

The Talking Dog: Is there anything else I should have asked
you, or anything else the public needs to know on these subjects?

Eric Freedman: Due process of law is not an optional luxury that we afford simply because we're a rich country. It is designed to reach accurate results. One of the largest delusions is that there are lots of "terrorists" at Guantanamo Bay. Every professional evaluation that the government itself has conducted has shown overwhelming majority of people being detained there shouldn't be there at all. Even now the government can formulate charges against only 2 dozen people, and it is unclear whether the charges can stand up against even those.

Assuming that the law and the facts support the long term imprisonment of 2 dozen, that leaves are about 450 other men still there. The purpose of the "enemy combatant" category is to hold them forever without having to show any wrongdoing on their part. One of them was picked up in Gambia-- far from any combat or combat zone, because the Gambians got into a dispute with him. Others have been cleared by courts of other countries... but the Americans decided they were suspicious anyway... and we have cases of mistaken identity. The purpose of due process is to ensure accuracy, as well as fairness, and when but due process is not been applied both suffer.

Remember the case of Wen Ho Lee. Even in an environment where due
process does apply, it is very easy for the government to make charges by issuing public statements, but proving those charges is something very different.

Jose Padilla was transferred to civilian custody, and suddenly, the most outrageous accusations against him simply disappeared. The government couldn't prove them, nor could it prove any charges at all against Hamdi. When the government has been forced to defend its "enemy combatant" accusations in court it has folded at the court hearing every time. We have due process of law to make sure that, in fact, we are holding the right people.

The United States military simply cannot occupy every inch of the globe. To win a war against ideologies opposed to us, we will have to win the hearts and minds of people around the world The biggest cost to the United States of the executive branch's insistence on arrogating unlimited power to has been is the loss of the moral power that comes from being an example to the world, a country that others justifiably to emulate.

But today, a young person in a country of totalitarian ideology may well respond, if asked to compare his own government with that of the United States, that there might (tragically) not be that much difference. That, long term, is by far the greatest damage that has been done to the United States, its interests and its values, and why the strongest blow that could possibly be struck against ideologies opposed to ours would be to recover our commitment to the rule of law.

The Talking Dog: Professor Freedman, on behalf of myself and my
readers, thank you for that fascinating interview.